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20 San Diego L. Rev. 779 (1982-1983)
Community Property with Right of Survivorship

handle is hein.journals/sanlr20 and id is 787 raw text is: Community Property with Right of Survivorship ROBERT L. MENNELL* In California, property cannot be both joint tenancy and com- munity property. This article examines the California rule and concludes that the rule should be reversed. The author proposes the creation of a voluntary addition to the community ownership of the right of survivorship, as is done in Idaho, Nevada, and Washington. INTRODUCTION In California and seven other statesl, property acquired oner- ously during marriage by a married couple is generally2 commu- nity property, unless the couple agrees otherwise. The community property system is derived from the civil law system.3 One form of holding title at common law is joint tenancy4 with t Copyright 1983 Robert L. Mennell. * Professor of Law, Hamline University School of Law. 1. The other states having community property systems are: Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. 2. R. MENNELL, COMMUNITY PROPERTY IN A NUTSHELL 3 (1982). This broad generalization obviously requires substantial modification for complete accuracy. For example, Louisiana and Texas have-until recently--completely or partly lim- ited the right of married persons to change the character of their property from community to separate or vice versa. Id. at 31, 32-33. 3. The civil law system is generally rejected in favor of the common law sys- tem in the United States; but an area in which the civil law system is incorporated into the California common law system includes the method of computing kinship. See CAL. PROB. CODE § 253 (West 1956). Compare the common law method ex- plained in 2 W. BLAcKsToNE, COmENTAIEs** 206-07 (1883). 4. Although loose usage may refer to other forms of joint ownership, the term 'Joint tenancy in California refers to that joint tenancy which contains a right of survivorship. July 1983 Vol. 20 No. 4

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